Stroud v. Kurn

• Decision Date: 03 March 1942
• Docket Number: No. 25893.,25893.
• Citation: 159 S.W.2d 307
• Parties: STROUD et al. v. KURN et al.
• Court: Missouri Court of Appeals

159 S.W.2d 307

STROUD et al. v. KURN et al.

No. 25893.

St. Louis Court of Appeals. Missouri.

March 3, 1942.

As Modified on Denial of Rehearing March 17, 1942.

Appeal from Circuit Court, St. Louis County; John A. Witthaus, Judge.

"Not to be reported in State Reports."

Action by Mrs. Erie Stroud and Serina Flynn, infants, by Laura Flynn, their next friend, against J. M. Kurn and John G. Lonsdale, trustees, St. Louis-San Francisco Railway Company, to recover for death of Frank Flynn. From a judgment for plaintiffs, defendants appeal.

Affirmed.

E. G. Nahler and A. P. Stewart, both of St. Louis, and A. E. L. Gardner, of Clayton, for appellants.

Clarence A. Johnson, of Maplewood, and E. McD. Stevens, of Clayton, for respondents.

SUTTON, Commissioner.

This is an action brought by the minor children of Frank Flynn to recover damages for his wrongful death.

The trial, with a jury, resulted in a verdict in favor of plaintiffs for $2,000. Judgment was given accordingly, and defendants appeal.

Defendants assign error here for the refusal of their instruction in the nature of a demurrer to the evidence.

The accident which resulted in the death of Frank Flynn occurred on June 20, 1940, about 6:30 p. m. in the City of St. Louis. He was struck by the locomotive of a westbound passenger train on the St. Louis-San Francisco Railway tracks. There were double tracks at the place of the accident. The north track was for westbound trains and the south track was for eastbound trains. Flynn at the time he was struck was sitting on the westbound track at or near the south rail. The train was in charge of D. Corrigan as conductor, William J. Donohue as engineer, and Hubert C. Fowler as fireman. The train was equipped with Westinghouse air brakes. The engine was a fifteen hundred class oil burner. The tracks run westwardly through St. Louis and St. Louis County from St. Louis Union Station. At Clifton Avenue the tracks curve toward the south. Clifton Avenue does not cross the tracks but ends at the tracks.

Hubert C. Fowler, being produced as a witness on behalf of the plaintiffs, testified, on direct examination, that he did not sound the whistle for Clifton Avenue; that he first sounded the whistle when he was probably 100 to 150 feet east of Clifton Avenue; that he saw a man on the south rail of the westbound track about 500 or 600 feet west of Clifton Avenue; that it looked like a man to him, and that was why he sounded the whistle; that he sounded the whistle probably two or three times; that he did not think he was much over 200 feet east of Clifton Avenue when he first saw the man; that he did not blow the whistle until he saw the man on the track; that the bell was ringing, that he blew the whistle because he realized there was a man on the track there in danger of being struck by the train; that the man was sitting on the south rail of the westbound main line facing south and he had his arms folded across his knees and his head down on his arm; that after he blew the whistle and the man did not move, he thought he must have been asleep; that the man did not move after he blew the first blast of the whistle; that he thought there was something the matter; that he blew the whistle several times more; that he blew these other blasts of the whistle fast and did not think the train went over 100 feet while he was blowing these other blasts of the whistle; that after he had blown these blasts of the whistle he told the engineer, "That will do," which means put on the emergency brakes for an emergency stop; that he guessed he was around 500 feet from the man on the track when he told the engineer, "That will do"; that the speed of the train at that time was around 40 or 45 miles an hour; that he did not think the train moved as much as 150 feet while he was blowing the whistle; that when he told the engineer "That will do," the engineer applied the automatic emergency brakes, which are the brakes used for emergency application; that when the engineer applied the brakes the engine was about at Clifton Avenue or probably just a little west of it—not over 100 feet west of it; that the condition of the weather was clear, no clouds, or rain, or anything in the atmosphere to prevent a clear vision.

On cross-examination the witness testified that at first glance he couldn't tell whether the object he saw on the track was a person, but that it looked like it was somebody sitting on the rail all doubled up, and he thought it looked like somebody sitting there; that that was his final conclusion; that he blew the whistle some place right along by where Clifton Avenue runs into the right of way; that he blew the whistle because he saw something sitting on the track, apparently a person, to notify him that the train was coming; that the automatic bell on the train had been ringing all the time; that he blew the whistle by pressing an electric button; that when the man on the track failed to respond to the whistle he supposed he was asleep; that when he first realized that the person on the track was not responding to the whistle he was probably 400 feet at most from him; that during all...